Southern Railway Co. v. Bruce

99 N.E.2d 447, 122 Ind. App. 87, 1951 Ind. App. LEXIS 223

Opinions

Wiltrout, J.

Appellant brought this action to recover from appellee by reason of an alleged undercharge in freight rates on a rail shipment.

The complaint charges that a small tugboat was shipped to appellee upon two railroad cars; that when it arrived the appellant’s agent by mistake collected from appellee a freight charge which was substantially less than the lawful charges as fixed by the applicable published tariff.

The rate claimed by appellant to be applicable applies, according to the published tariff, to “Tugboats, SU, loose or in packages.”

If the craft shipped was not a tugboat, then appellant must fail in its appeal. It is not claimed that any rate other than the one contended for by appellee is applicable if the craft was not a tugboat.

This craft is referred to in a stipulation of the parties as a “Sea Mule” tug. There was testimony that it was, and also testimony that it was not a tugboat. The court made a general finding in favor of appellee.

The evidence was conflicting, and we may not weigh it. We are not at liberty to substitute our judgment for that of the trial court. Williams v. Bent (1949), 119 Ind. App. 374, 87 N. E. 2d 883; McKinley v. Long (1949), 227 Ind. 639, 88 N. E. 2d 382.

Judgment affirmed.

Martin, C. J., dissents with opinion. Bowen, J., not participating.

Note. — Reported in 99 N. E. 2d 447.